« on: June 16, 2008, 06:25:28 AM »
Miss P wrote:
No, you're wrong; I don't know where you are getting this stuff. The bar for a facial challenge is higher than a bar for an as-applied challenge. When the Court decided Crawford, it didn't say that the law was constitutional as it is applied. It said merely that the law was not unconstitutional on its face. In a later as-applied challenge, the plaintiffs will have the opportunity to develop the record on whether the law is discriminatory. If it is, it may be unconstitutional. Moreover, it does not have to discriminate based on suspect classifications to be subject to strict scrutiny or to be deemed unconstitutional. Voting is a fundamental right; all burdens on the franchise must meet strict scrutiny.
if a statute says that "italian-americans" cannot vote, that would be discriminatory in its face. this would be pretty easy to determine from the language of the statute, especially when you apply the strict scrutiny standard. this would be a determination as a matter of law and it would be dispositive. but if you passed a law stating that you have to be able to sing all the words to the "thong song" to vote and applied it only to those over 60, that would be discriminatory as applied. since it involves a two-step process (1. is it discriminatory on its face, no, 2. is it being unfairly applied, yes) it is necessarily more complicated. it requires collecting bushel barrels of data (facts) to show that it isn't happening in just a few instances but that it is a widespread issue. because it becomes a fact question instead of a law question it takes more time. this is why parties often choose to mount a facial challenge first, because it is easier. the parties in Indiana did it this way because 1. a finding of "discriminatory on its face" is fatal and 2. because they wanted to beat the clock to the fall election and this type of challenge takes less time.
you asked me to cite one example. i cited two. needless to say it often takes long periods of time for the story to emerge in cases like this.
in Wisconsin, if you cannot afford an ID, you apply for a fee waiver. it's quite simple. you don't pay one red cent. and those who are most affected by this aren't blacks, but latinos, mostly those who are here illegally.
having an ID also makes sense for other unrelated reasons.